HN & Ors, R (on the application of) v Secretary of State for the Home Department

These proceedings

“Rolled Up” Order

Application to amend

Tribunal Directions of 23 May 2015

The Evidence

The Individual Applicants

The Issues

Conclusions

Order and Ancillary Issues

The Applicants are five single male adults, of assorted ages, ranging from 19 to 40 years, all nationals of Afghanistan. They bring these proceedings against the Secretary of State for the Home Department (the “ Secretary of State ”) arising out of action taken by the latter to convey all of them by charter flight to Afghanistan on 10 March 2015. In the case of the fifth Applicant, AB, we made an Order on that date refusing to grant interim relief having heard Counsel for the Applicant. Later on the same date our Order was reversed by the Court of Appeal.

The challenge brought by AB was one of 14 similar cases initiated on the same day, 09 March 2015. The following day, a further 7 comparable challenges followed. All of these challenges were related to the repatriations to Afghanistan proposed to be effected by the Secretary of State’s charter flight on 10 March 2015. To summarise, on this date:

AB was granted interim relief by the Court of Appeal.

The Upper Tribunal granted interim relief in 16 cases.

The next material development was that the Secretary of State arranged a further charter flight to Afghanistan, scheduled to depart on 21 April 2015. Removal directions were made accordingly. This was the stimulus for 21 new judicial review applications in which interim relief was granted. We took the view that the determination of these applications had, in effect, been dictated by the Court of Appeal’s Order reversing our decision in AB’s case on 10 March 2015. Interim relief was, in consequence, granted to a total of 14 Applicants. Pausing, there were, altogether, 35 live cases, having much in common with each other, at this stage.

From this group five lead cases, including that of the fifth Applicant, AB, were selected. This was reflected in a consent order dated 10 April 2015. This mechanism was deployed in the interests of orderly and efficient case management and with a view to inducing a decision of the Tribunal designed to encompass all members of the group. At that stage it was apparent that, broadly,

As a result of the subsequent withdrawal of four cases by consent, the current number of judicial review Applicants is 32. The evolution of these proceedings outlined above has resulted in the allocation of the Applicants to three Schedules. These are the final Schedule AB, the consolidated Schedule C and Schedule D. These Schedules are appended to this judgment

There are certain facts and factors common to all five Applicants:

Each of them entered the United Kingdom unlawfully at different times and claimed asylum unsuccessfully.

The First-tier Tribunal (the “ FtT ”) dismissed their ensuing appeals.

Permission to appeal to the Upper Tribunal was refused subsequently.

All of the Applicants are challenging decisions by the Secretary of State to remove them to Afghanistan.

Following the initiation of these proceedings and the grant of interim relief at the first of the two stages noted above, namely on 10 March 2015, further representations were made, generating new decisions by the Secretary of State, in all five lead cases, that these did not amount to a fresh claim under paragraph 353 of the Immigration Rules (“the fresh impugned decisions”). The second to fifth Applicants received successive fresh decisions, on 23 and 31 March/01 April 2015. In the particular case of the first Applicant, HN, the decision which he received at this stage was an initial decision. These further decisions of 31 March and 01 April 2015 have overtaken the earlier removal decisions and, following amendment, are the revised target of the Applicants’ current challenges.

A singular feature common to all five lead cases is that following the fresh impugned decisions, during the currency of these proceedings, further evidence has been generated on behalf of all the Applicants and filed, in support of their judicial review challenges. Further evidence was also assembled and filed on behalf of the Secretary of State. We shall examine the significance and implications of these developments infra .

The most recent country guidance decision of the Upper Tribunal relating to Afghanistan is AK (Article 15(c) Afghanistan) [2012] UKUT 00163. The Tribunal, while noting that there had been a deterioration in the general security conditions prevailing in the country, held that there was an insufficient degree of violence in Afghanistan as a whole to overcome the Article 15(c) threshold. The Applicants in these proceedings make the case that having regard to a substantial body of evidence which has materialised since 2012, it is appropriate

There is some ambivalence in the Applicants’ arguments as to whether these judicial review proceedings should be the vehicle for the formulation of fresh, updated country guidance. In principle, they might have sought to make a case having the following components: that the new country evidence forms part – a significant one – of the material upon which the Secretary of State should properly have decided that the fresh claims threshold was overcome; that by these judicial review applications the unlawfulness of the Secretary of State’s decisions will be exposed; and, in consequence, it will be incumbent upon the Secretary of State to make further decisions recognising that these are indeed fresh claims, with the result that appeals will lie to the FtT which will provide a forum for presenting evidence and ventilating arguments relating to the enduring tenability of the decision in AK . This would not, therefore, be a country guidance appeal by stealth. However, the Applicants’ case was not presented in this way.

Following the grant of interim relief to 14 Applicants, as recorded above, these proceedings effectively split into a series of phases:

The initial phase, during which the judicial review applications were initiated and interim relief was granted.

The case management phase which, initially, unfolded between 10 March and 22 April 2015.

In parallel with the case management phase, the submission of further representations to the Secretary of State on behalf of all Applicants, including the five lead Applicants and the making of fresh decisions in four cases and an original decision in the case of the first Applicant, HN

In parallel with (ii) and (iii) and beyond, the progressive acquisition of further evidence on behalf of the Applicants which was filed and upon which they sought to rely.

The intermittent acquisition and filing of further evidence on behalf of the Secretary of State.

The Tribunal’s initial intention was that on the date allocated for hearing, 22 April 2015, these cases would proceed as inter partes permission hearings. At the commencement of the hearing on this date, the Tribunal raised the question of whether these should properly be combined permission and substantive hearings viz so-called “rolled up” hearings. Submissions were made on behalf of both parties. Having considered such submissions, the issue was reserved

On 08 May 2015, the Applicants, without prior intimation to the Respondent or the Tribunal, produced a substantial quantity of new evidence, including an expert’s report, upon which they wished to rely. It became clear that due to the lateness of this development, the hearing would have to be vacated. Bearing in mind the public law character of judicial review proceedings, the Tribunal was minded to receive the further evidence de bene esse , subject to the Respondent having an opportunity to reply. It became clear to the Tribunal at this stage that the proceedings no longer had the character of a typical permission application. Evidence had been assembled in considerable bulk, the Secretary of State had made fresh decisions in each case, there were extensive skeleton arguments and the legal representatives in attendance numbered approximately 12 in total. Furthermore, in the interim, the Applicants’ solicitors had proposed the conversion of the proceedings to the “rolled up” variety, to which the Respondent’s representatives objected. The Tribunal had made no ruling on this issue. Taking into account the aforementioned factors, the allocation of a panel of two Judges to deal with the cases and the overriding objective, we concluded without hesitation that a rolled up order was appropriate. The Applicants’ representatives protested that they would need further time to prepare in consequence. With great reluctance, a further adjournment was granted, with rescheduled dates of 11 and 12 May 2015.

The further consideration which influenced the Tribunal in making the “rolled up” order was that the substantial commitment of Tribunal time and resources which had materialised would not be properly or usefully employed in a decision merely granting or refusing permission, having regard to the rules and principles of precedent, the large number of cases belonging to the group (30+) and the foreseeable likelihood of further challenges to attempted Afghanistan repatriations.

On the third day of hearing (11 May 2015) an application on behalf of one of the Applicants to amend the grounds of challenge was served. The Tribunal pointed out that, as formulated, this did not identify any intelligible public law ground of challenge to the Secretary of State’s decision. We directed a concise, coherent pleading, rectifying this defect. On the fourth day of hearing (12 May 2015) a further pleading in purported compliance with this direction was produced. As our exchanges with Counsel for the Applicant made clear, the Tribunal continued to struggle with the thrust of this proposed new ground. By this stage of the proceedings, the Applicants’ grounds had already undergone significant amendment, resulting in amended grounds dated 15 April 2015.

The thrust of the proposed new ground of challenge, as understood by the Tribunal, was symptomatic of the organic evolution which had, by this juncture,

The application to amend was opposed on behalf of the Secretary of State. Having considered the submissions of both parties’ Counsel, we pronounced our ruling, refusing the application. Our reasons for doing so were, in summary:

The application was based on fresh evidence which had not been considered by the Secretary of State. It would be undesirable for the Tribunal to conduct any review of something which had not been the subject of consideration and decision by the Secretary of State, the primary decision maker.

It was difficult to see how new evidence of the kind in question could properly found a challenge to a decision under paragraph 353 of the Immigration Rules.

The Applicant in question was seeking to advance a discrete judicial review challenge without having first exhausted the alternative remedy of making his case to the Secretary of State.

The application to amend was unacceptably delayed: the evidence established that the Applicant’s solicitors were in possession of much of the relevant evidence by 23 April 2015 at latest and the failure to give advance notice appeared tactical.

To permit the application would be to prejudice the Secretary of State, given its nature and lateness.

To permit the application could jeopardise the orderly and expeditious continuation and completion of the proceedings.

The application did not satisfy one of the tests enshrined in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49, at [66] & [92], since it was not based on reliable and undisputed evidence: quite the contrary, the two pieces of evidence in question, consisting of letters from the Red Cross, were directly contradictory of each other.

We reproduce in full the direction which the Tribunal made on the following day, 23 May 2015:

to confirm the correctness of the Tribunal’s assessment in (2), (3) and (4) above; and further, or alternatively,

to provide such other confirmation and/or information as may be appropriate.

In the event of an affirmative confirmation of the Tribunal’s assessment in (2), (3) and (4) above, the Applicants solicitors should also indicate in writing [ not to exceed two A4 pages ) the grounds upon which it is contended (if it be thus contended) that these proceedings should continue .”

The purpose of the aforementioned direction is, we trust, self evident. Its timing was not ideal, in the sense that in the hypothetical ideal world of litigation a direction of this kind should preferably issue before substantive hearings begin. However, given the evolution of these proceedings, summarised above, the Tribunal considered that it was appropriate to issue the direction at this stage.

The response made by the Applicants’ solicitors began with the following significant acknowledgement:

This was followed by the Secretary of State’s rejoinder. This incorporated a contention that the Tribunal should complete the proceedings “…. on all grounds except that the Tribunal should not consider the material which postdates the decisions under challenge save to the extent that the material touches on other issues which the Tribunal has to determine ”. We interpose the immediate observation that it is not altogether easy to grasp the meaning of this suggestion. The Secretary of State’s submission further noted that subsequent to the initially impugned decisions viz those proposing to remove the Applicants from the United Kingdom on 10 March 2015, further evidence, in particular two expert reports and country evidence, was served on behalf of the Applicants, followed by the Secretary of State’s further decision in each of the five lead cases on 31 March 2015. The Applicants’ position was that yet another fresh decision should be made in the currency of these proceedings and in the context of a stay thereof. The following passage encapsulates the Secretary of State’s rejoinder:

It was further submitted that the adoption of this course would result in the parties receiving the Tribunal’s evaluation of the large volume of material which was considered by the Secretary of State at the stage of the post-permission decisions on 31 March and 01 April 2015. This course, it was contended, would have the virtue of obliging the Applicants’ representatives to consider the viability of yet another “fresh claim” to the Secretary of State in the light of the Tribunal’s judgment. One could reasonably anticipate, it was argued, a “narrowing” of both the issues and the evidence to be considered in any further decision making process and any ensuing new judicial review proceedings. The submission of Ms Glass was that this course would further the overriding objective. Finally, this submission invoked the circumstance of other, pending cases viz the cases of the (almost 30) Applicants who do not have the status of lead Applicants, some of whose cases are the subject of undetermined permission renewal applications.

Unsolicited, the Applicants’ representatives rejoined to the Secretary of State’s response. This took the form of yet another not insubstantial written submission. This adverted to still further recent evidence, in the public domain, postdating the adjournment of the proceedings on 11 May 2015. There followed a lengthy rehearsal of the circumstances in which various items of new evidence materialised and were deployed in the proceedings subsequent to their initiation in early March 2015. This submission contains the following passage which, evidently, refers to the adjournment which occurred on 08 May 2015:

adjourn the first ground of challenge, pending further claims/representations to the Secretary of State and the outcome thereof; and

determine, at this stage, the second ground of challenge – but only following still further submissions on behalf of the Applicants.

At this juncture, it is convenient to highlight the new evidence generated bilaterally following the grant of interim relief on 10 March 2015 and, in addition, subsequent to the further decisions of the Secretary of State dated 31 March and 01 April 2015. This is divided into two schedules in Appendix 2 hereto. Furthermore, as noted above, there is the distinct possibility of yet another category of evidence materialising. In the paragraphs which follow we provide our resume of the most salient parts of the evidence.

One of the main stimuli for the recent flurry of proceedings described above is a litigation report dated 04 March 2015 prepared by Dr Liza Schuster of the City University London, School of Social Sciences. Dr Schuster is presently a guest researcher and lecturer at Kabul University and her experience of the country dates from around 2009. Her research project focuses on the aftermath of deportation to Afghanistan and, in particular, the impact on those deported and their families. In connection with this project, she interviewed the new Afghani Minister for Refugees and Repatriation on 28 February 2015. In her ensuing report the following statement is attributed to the Minister:

Addressing the years 2013 and 2014, Dr Schuster states:

The evidence assembled by the Applicants includes a very short statement of Professor Susan Clayton, who has also carried out relevant research relating to Afghanistan during a period of several years. She suggests that the availability of accommodation provided by the International Office of Migration (“IOM”) is both limited and variable, while financial allowances to returning nationals permit survival in Kabul only for 2 or 3 days. She corroborates Dr Schuster’s evidence about the lack of employment prospects in the city, largely on account of the non-existence of family networks. She opines that only some 10% of those returning remain in Kabul longer term; some 10 – 15% return briefly to their home areas outside Kabul, mainly temporarily only; and the remaining 75/80% leave the country within 2 – 3 months. This assessment is based upon the Professor’s sample group of around 70 unsuccessful asylum claimants who were removed from the United Kingdom to Afghanistan.

In August 2013 UNHCR published its “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”. In its overview, this report states:

By the end of 2012, 670,000 Afghans were reported to live within 500 metres of areas contaminated by land mines, affecting more than 1800 communities, while undetonated IEDs continued to have an impact in certain areas. There were almost 20,000 incidents initiated by AGEs in 2012. Of the 12 provinces with the highest incident rates – 640 – six are in the south or south eastern region. ANSO described the southern, south eastern and eastern region as forming an increasingly contiguous battle space. Cross border shelling from Pakistan also continued, with a total of 44 incidents causing 14 civilian categories in the eastern region during the first six months of 2013.

In its report, UNHCR describes “ an increasingly heavy toll on the humanitarian situation in the country” , coupled with diminishing humanitarian access to affected populations who are amongst the most vulnerable of the country’s citizens. The reduced availability of health care facilities was highlighted. The years 2012 and 2013 witnessed an increase in the number of internally displaced people (“ IDPs ”) from around 486,000 to some 575,000. Such persons are amongst the most vulnerable groups in the country, particularly in urban areas.

The UNHCR report addresses the specific issue of internal relocation in Afghanistan, particularly from the perspectives of safety and reasonableness. It highlights the volatility and fluidity of the continuing armed conflict. It suggests that the proposed area of relocation must be “practically, safely and legally accessible” to the person concerned. The personal traits and circumstances of the individual must be evaluated, together with the security situation, respect for human rights and the possibilities for economic survival in the area concerned. UNHCR opines that internal relocation is not available in “ areas affected by active conflict ”. A person relocating to an urban area (such as Kabul) with no assured accommodation, no livelihood option and bereft of meaningful support networks, will be in a situation comparable to that of IDPs. The significance of this is that IDPs are considered to be among the most vulnerable groups in Afghanistan, many beyond the reach of humanitarian organisations. UNHCR suggests that internal relocation is reasonable only where the individual can expect to benefit from meaningful family, community or tribe support in the area of prospective residents. The report continues:

The European Asylum Support Office (“EASO”) Report of January 2015 describes the continuing conflict between the Afghan National Security Forces (“ANSF”), supported by the International Military Forces (“IMF”) and the AGEs, or insurgents. This is described in certain quarters as a non-international armed conflict. In November 2014 Afghanistan was ranked second only to Syria in the World Security Risk Index. The International Security Assistance Force (“ISAF”), with a total strength of some 35,000 troops supplied by 48 contributing nations, operating under the UN Charter and the UN Security Council, is no longer deployed in Afghanistan, following a phased withdrawal between 2012 and 2014. The closure of the ISAF bases precipitated an end to the work of the Provincial Reconstruction teams. EASO suggests that this has had a significant adverse impact on the areas formerly secured by the ISAF forces:

The report notes that, according to UNAMA, just under 5000 civilian casualties (some 1600 killed and 3300 injured) were documented in the first half of 2014, a 24% increase compared to the corresponding period in 2013. Other figures suggested that the likely total number for the whole of 2014 would be around 10000. The report states:

The Institute for the Study of War (“ISW”) has published a very recent report, in March 2015. This records that the US military presence in Afghanistan is now reduced to approximately 10000 troops. The so-called “draw down” timetable and the US counter-terrorism strategies are currently under review. The report notes the “ numerous challenges ” confronted by ANSF, highlighting:

The Institute provides the following informative summary:

The relative proliferation of recent reports includes the United Nations Assistance Mission in Afghanistan (“UNAMA”) 2014 Report, published in February 2015. We have already addressed this report indirectly, since several of the reports summarised above draw upon and reproduce information contained in it. One of the central themes of the report is the increasing toll of the conflict on civilians. This is reflected in a 22% rise in civilian casualties in 2014. There were 3699 civilians’ deaths and injuries to 6849 civilians, increases of 25% and 21% respectively in comparison with 2013. This was the highest number of civilian deaths and injuries in a single year since the commencement of systematic recording by UNAMA in 2009. During the six year period beginning on 01 January 2009, there have been 17774 civilian deaths and injuries to 29971 civilians. One of the main causes of these increased casualties is to be noted:

The report further notes an increase in civilian casualties, for the sixth consecutive year, caused by “ the indiscriminate and unlawful use ” of IEDs. This followed ground engagements as the second main cause of civilian casualties in 2014 (28%). Typically, these deaths were precipitated by attacks directed against Afghan security forces in populated areas. Compared with 2013, the increase was 38%, entailing 42 deaths and injuries to 126 civilians. In the year 2014, the total attacks claimed by the Taliban resulting in civilian casualties was 382. Of these, some 60% were directed at various elements of the Afghan and international military forces.

The UNAMA evidence is nothing if not current. It includes a press release, dated 12 April 2015, containing the following statement:

In February 2015, the Home Office published its Country Information and Guidance Report (“CIG”) and updated Operational Guidance Note (“OGN”) relating to Afghanistan.

The CIG Report has the expressed purpose of providing guidance to Home Office decision makers on the handling of protection claims made by nationals of Afghanistan. This publication records that in areas controlled by AGEs, no effective state protection exists. This is followed by a suggestion that in Kabul and other cities and towns controlled by the Government, a willingness to offer protection is unlikely to equate with the availability of effective protection –

The Home Office CIG draws heavily on other sources, including the EASO and UNAMA reports, reflecting the pattern of overlap and duplication to which we have adverted above. It also draws on the Secretary General’s report to the UN Security Council, which records a 5% decrease in security incidents during the 3 month period August to November 2014; a 10% increase during the period January to November 2014; and a description of the southern, south eastern and eastern regions of the country as the most volatile areas, accounting for 69% of incidents. ANSF consists of the National Army, the National Air Force and the National Police, with some 358000 members in total. This composite force is supplemented and assisted by other groupings or entities known as “Pro-Government Forces”. The consistent perception and assessment that ANSF, particularly the police element, has engaged in human rights abuses with impunity, corruption, abuse of power and extortion is one of the reasons for the evaluation of overall state protection as weak and inadequate. Finally, the CIG

The Home Office Operational Guidance Note (“OGN”) relating to Afghanistan issued in June 2013 was updated and republished in February 2015. As regards the discrete issue of internal relocation, emphasis is placed on the application of the relevant UNHCR eligibility guidelines [17/12/2010]. These include the following significant passage:

The final issue addressed in the OGN is that of enforced returns to Afghanistan. This highlights the general policy that such returns can properly take place, subject to certain limitations. Assisted voluntary return remains the preferred option. In this context, reference is made to the Memorandum of Understanding (“MOU”) executed by the United Kingdom, the Afghan Transitional Administration and UNHCR in October 2002 ( supra ). The subject matter of this MOU is stated to be “ Voluntary Return”. The report continues:

This evidence, in summary, bears on the arrangements/agreements made between the United Kingdom and Afghanistan Governments. It consists of the aforementioned MOU, some recent “Notes Verbales” (“NVs”), four witness statements and one letter filed on behalf of the Secretary of State. The first of these statements was generated pursuant to the Tribunal’s directions in the wake of the Court of Appeal order, dated 10 March 2015, reversing its decision refusing to grant interim relief in the case of the fifth Applicant, AB. By this direction the Secretary of State was required to provide evidence relating to what actually happened upon the arrival in Kabul of the charter flight which departed the United Kingdom on 10 March 2015. This direction was motivated, in the context then prevailing, by one plausible interpretation of the then extant evidence namely that the Afghan authorities would refuse to allow any passenger considered by them vulnerable to disembark, thereby forcing their return to the United Kingdom. This evidence would have an obvious bearing in the context of any subsequent charter flight repatriation operation.

This direction stimulated the first witness statement of one Robert Chatterton Dickson, Charge d’ Affaires of the British Embassy in Kabul. To this witness statement were exhibited a Memorandum of Understanding and a single NV. The witness statement is dated 18 March 2015. While a further witness statement of Mr Chatterton Dickson and additional exhibits materialised thereafter, together with a witness statement made by a different deponent, these were unsolicited in the sense that they were volunteered on behalf of the Secretary of State rather than required by directions of the Tribunal. This brief preface to the Respondent’s evidence serves to highlight again the organic nature of these proceedings.

The tripartite Memorandum of Understanding (“MOU”) was executed by the United Kingdom, the Afghan Transitional Administration and UNCHR in October 2002. The recitals make reference to co-operation:

The MOU is to be considered in conjunction with four inter-governmental communications in March and April 2015, each in the form of a NV. The first, dated 10 March 2015, refers to an agreement, evidently of very recent vintage, between the two governments:

The MOU and four NVs must be considered in conjunction with three witness

Next, Mr Chatterton Dickson addresses events at Kabul Airport on 11 March 2015, describing this operation as “ successful ”. He lists the nine provinces to which the 24 returning Afghan nationals were travelling. They received the conventional Institute of Migration (“IOM”) briefing, which includes information about a maximum 14 night stay at a purpose built reception centre and onward travel. The latter option was selected by 21, while three chose to stay at the centre. Some of those returning were met by family and friends. The following day, Mr Chatterton Dickson was formally advised that the Afghan Government does not have “ a co-ordinated position on the issue of international returns ” and that any renegotiation of the MOU would, therefore, be deferred.

In his second witness statement, which is dated 17 April 2015, Mr Chatterton Dickson, having exhibited the three NVs, avers:

The third of Mr Chatterton Dickson’s witness statements is dated 06 May 2015. Reflecting the organic character of these proceedings, it was made:

Exhibited to Mr Chatterton Dickson’s third witness statement is a letter from the United Kingdom Immigration Minister to the aforementioned Director General. This contains the following passage:

Mr Rich, the Assistant Director of the Operational Support and Certification Unit (“OSCU”) of the Home Office, is the author of the fourth of the Respondent’s witness statements. This is dated 18 March 2015 and contains the following salient averments:

Notwithstanding the determination of the Tribunal to complete these proceedings with the maximum expedition and to provide a swift judgment, the phenomenon of new evidence continued. Thus, on the morning of the rescheduled substantive hearing on 08 May 2015 – see [11] and [12] above – the following new evidence was presented on behalf of the Applicants:

The witness statement of a caseworker employed by the Applicants’ solicitors documenting a telephone conversation with Minister Balkhi and attributing to the Minister a statement that repatriation will not be acceptable in the cases of “ children, families, lone females, those from dangerous provinces and those with serious illness ”, coupled with a description of the provinces of Helmand, Ghazni and Kunduz as “ very dangerous ” provinces.

A witness statement of another caseworker describing a telephone conversation on 22 April 2015 and two emails dated 4 May 2015 with one of those repatriated via the flight on 10 March 2015, a person described as a failed asylum seeker now aged 21 years. This person, it is averred, reported that following arrival he was accommodated in the reception centre for 14 days whereupon he was required to leave and is “ currently living on the streets and begging ”. He claims to have no family contacts. We have highlighted the date of this conversation for the purpose of underlining the unacceptability, in the context of these proceedings, of the caseworker’s witness statement being delayed for a period of 16 days thereafter.

The witness statement of a consultant solicitor documenting a telephone conversation with an official of the Afghan Ministry of Refugee and Repatriation on 07 May 2015 to the effect that the repatriation of “ any families, children, lone females, those from dangerous provinces and those with serious illness ” is unacceptable to the Afghan authorities. It is further averred that on 06 May 2015, eight out of nine Afghan nationals repatriated from Sweden were accepted. The ninth was returned “ as no

Finally, there is a 58 page document entitled “Expert Report, Security Situation in Afghanistan”, dated 07 May 2015, prepared by Tim Foxley MBE. This report, despite its bulk, ends with “health warnings” that it is “ preliminary only ” given the “ tight time frame ” imposed on the author. There is no clear explanation of the timing or genesis of this report, in a context where the proceedings were progressing on a high speed track and were of two months vintage at this stage. Having highlighted these

It is appropriate to recall that the five Applicants were selected, by agreement of the parties duly endorsed by the Tribunal, in the circumstances outlined in [1] – [10] above. These are five lead cases in a context in which a total of 34 Applicants have been granted interim relief. Permission to apply for judicial review has not been ordered in any of these cases. The purpose of the exercise of identifying five lead Applicants was to generate a judicial decision which would, to the maximum extent possible, provide guidance in and, if feasible, effectively determine the other pending cases. The individual features of the cases of the five lead Applicants, summarised in [55] – [59] infra , are to be considered in this context. Furthermore, pursuant to further directions of the Tribunal, the text which follows has been agreed by the parties’ representatives.

The first Applicant, HN, is aged 22 years. He entered the United Kingdom as a minor, in 2007, aged 14. He is from Laghman province. He has resided here for almost eight years. The last judicial decision in his case was on 30 September 2013, when the FtT decided that the Applicant was not credible and rejected his evidence since his last appeal in 2011. The Judge found he had a deep-rooted resistance to being returned to Afghanistan, and rejected any risk on return. The FtT found that the Applicant had support in Afghanistan (the Applicant’s own account was of his cousin’s family in Kabul and he claimed he had previously resided in Kabul with a neighbour’s relative for a year before his departure from Afghanistan). The Judge also dismissed the Article 8 appeal. Mental health was not in issue in this appeal. On 20 November 2013 the Upper Tribunal refused permission to appeal. This Applicant’s challenge asserts a prima facie risk of treatment contrary to Article 15(c) of the Qualification Directive in his home province. It further involves the contention that, in his present condition, he cannot safely or reasonably relocate to Kabul. This contention is based on certain medical evidence which records a history of recent suicide attempts, self-harming and hunger strike. The medical expert describes this Applicant as manifesting severe mental health problems, describing his condition as “ unstable ”. He too invokes paragraph 276 ADE of the Immigration

The second Applicant, SA, celebrated his 18 ^th birthday on his deemed date of birth of 01 January 1997. He originates from the Baghlan province. On 01 October 2014 the FtT held that while he would be at real risk of persecution in

The third of the five Applicants is JG. He entered the United Kingdom in 2009, aged 19 and is now aged 25. The FtT accepted that his father was a member of the Taliban in charge of nine or ten men who died fighting in 2009. The FtT also accepted that the Taliban possibly tried to recruit the Applicant but did not find it credible that they would do so forcibly or that they would harm or kill him if not prepared to join them. Like FK (the fourth Applicant) he originates from the Nangahar province. The last judicial decision in his case was on 30 January 2015, when the FtT decided that the Applicant was not credible, and found that he was not at risk from the Taliban, and in any event could reasonably and safely relocate to Kabul. He was unrepresented at the appeal. The Judge considered the appeal under the SSHD’s OGN. The Judge found that the Applicant had a wealthy uncle in Afghanistan who would be prepared to support him, and even without such support relocation to Kabul was reasonable. The FtT also rejected his Article 8 appeal finding he had family in Afghanistan. On 3 February 2015, the FtT refused permission to appeal. His challenge has two dimensions. The first is that there is a prima facie risk of Article 15(c) treatment upon returning to his province. The second is that, per paragraph 276 ADE of the Rules, there are serious obstacles to his integration and/or his private life rights under Article 8 ECHR will be infringed having regard particularly to the insecurity of attempting to travel to his home area, the new evidence about the prevailing conditions in Kabul and the absence of any family there.

The fourth Applicant, FK, is aged 25 years and originates from the Nangahar province, where his family lives. On 11 December 2014, the Applicant claimed

The last Applicant, AB, is aged 26 years. He has been in the United Kingdom

We have noted the salient features of each of the Applicants and their individual circumstances above. In doing so we have outlined the legal contours of their challenges. The first element of the Applicants’ cases, duly developed by Ms Naik in both written and oral argument, is based on the Qualification Directive. The primary case made by some of the Applicants is founded on Article 15(c) of the Qualification Directive, while others invoke this protection in a secondary, or indirect, manner. Article 15(c) provides:

In Elgafaji, the ECJ construed Article15(c) as dealing with a more general risk of harm than that covered by 15(a) and (b).

In Diakite, the Court, having provided a definition of internal armed conflict at [28] reaffirmed in [30] its view that for civilians as such to qualify for protection under Article 15(c) they would need to demonstrate that indiscriminate violence was at a high level:

In the United Kingdom, the leading decision of the higher courts dealing with Article 15(c) remains QD (Iraq) v Secretary of State for the Home Department [2011] 1 WLR 689 . QD helpfully explains how Elgafaji should be applied. In addition we have the guidance set out in HM and others (Article 15(c) Iraq CG [2012] UKUT 409 (IAC) wherein, at [42]-[45], the Tribunal stated:

In HM at [73] the Tribunal decided that an attempt to distinguish between a real risk of targeted and incidental killing of civilians during armed conflict was not a helpful exercise. We agree, but in assessing whether the risk reaches the level required by the CJEU, focus on the evidence about the numbers of civilians killed or wounded is obviously of prime importance. Thus we have been told that each death can be multiplied up to seven times when considering injuries to bystanders. This is somewhat speculative and it must be obvious that the risk of what has been called collateral damage will differ depending on the nature of the killing. A bomb is likely to cause far greater “collateral damage” than an assassination by shooting. But the incidence and numbers of death are a helpful starting point.

The harm in question must be serious enough to merit medical treatment. It is not limited to physical harm and can include serious mental harm such as, for example, post-traumatic stress disorder. We repeat and adopt what the Tribunal said in HM at [80]:

The second legal element in the Applicants’ collective challenge is constituted by the principle, now firmly embedded in refugee law, that the grant of asylum can be lawfully withheld on the basis of internal relocation in the claimant’s country of origin only where this recourse, or solution, is both reasonable and safe: see, for example, Jasim v SSHD [2006] EWCA Civ 342, per Sedley LJ at [16]. The third legal basis of the Applicants’ challenges invokes the private life dimension of Article 8 ECHR, in conjunction with paragraph 276 ADE(vi) of the Immigration Rules. The latter provides, under the rubric “Requirements to be met by an applicant for leave to remain on the grounds of private life”, in material part:

The next element of the Applicants’ challenge has two ingredients, namely the Secretary of State’s policy guidance enshrined in the OGN (digested in [25] – [26] above) and the MOU. Reliance is placed on paragraph 6.4 of the former, which replicates the agreement enshrined in the MOU that individuals or groups identified as vulnerable will be excluded from the programme of enforced returns. This aspect of the challenge, duly developed in Ms Naik’s submissions, also highlights the specific provision in the MOU committing the UK Government to take into account “ the evolving situation in Afghanistan as well as the major challenges involved in ensuring basic services for all of its citizens ” and the related commitment that the return process will be phased, orderly and humane, will be accomplished in manageable numbers and will take into account the availability of accommodation (per paragraph 3).

In the particular case of SA (the third Applicant), who has very recently attained the age of 18 years, the status of former looked after child is invoked. This status founds the contention that his repatriation would contravene the “ proposition ” in JS (former unaccompanied child – durable solution) Afghanistan [2013] UKUT 00568 (IAC) that he is protected from removal by Article 8 ECHR, having regard to his teenage status upon arrival in the United Kingdom, his subsequent placement in care and his current age (18). Ms Naik also invoked the principle of durable solutions.

Mrs Naik’s submissions also dilated on the Applicants’ challenge to the Secretary of State’s certification of their claims under paragraph 353 of the Immigration Rules (“the Rules”). This provides:

had not already been considered; and

taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

We distil the submissions of Ms Glass on behalf of the Secretary of State on all issues to the following main contentions:

Particular regard must be had to the recent determinations of the FtT in the Applicants’ cases. This involves in particular acknowledging the lack of novelty in the suggestion that relocating to Kabul is not safe or reasonable, in circumstances where recent country evidence was judicially considered.

The lawfulness of the Secretary of State’s most recent decisions withstands scrutiny by reference to the standard of rationality.

The Secretary of State’s decisions are consistent with the recognition in the most recent UNHCR guidelines of the internal relocation of single able bodied men and couples of working age to urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life.

Professor Clayton’s brief report does not arguably justify a departure from the country guidance promulgated in AK .

The statements of Minister Balkhi have been considered by the Secretary of State and must not be viewed in isolation from other evidence and events, including the efficacious repatriation of 24 Afghans from nine provinces pursuant to the charter flight of 11 March 2015. Furthermore, his statements are not supported by UNHCR.

The Secretary of State reasonably concluded that, given its limitations, Dr Schuster’s report did not warrant a departure from

Focusing on the standard of rationality to be applied to the Secretary of State’s most recent decisions, the current country evidence falls well short of sustaining the Applicant’s challenges.

Those Applicants who invoke the “ very significant obstacles to integration ” criterion in Rule 276ADE(vi), in advancing claims under Article 8 ECHR, did not make this case in their further submissions to the Secretary of State. Furthermore, as regards the Applicant HN, his Article 8 private life claim has been rejected in two successive appeals.

As regards the Applicants, HN and SA, both of whom assert mental health problems, the supporting evidence is extremely limited and, in the case of SA, there is no medical evidence.

The relevance of the MOU is confined to the context within which interim injunctive relief was granted. Furthermore, the MOU does not give rise to legal rights and obligations and, even if it does, these must be confined to the parties thereto.

The OGN does not have the status of a Home Office repatriation or removals policy. Rather, its function is to provide guidance to case workers and decision makers. In any event, it does not erect any policy obstacle to the enforced return to Afghanistan of failed asylum applicants. Furthermore, it contains no definition of “ vulnerable ”. In this context, the MOU defines only one category of vulnerable persons, namely unaccompanied minors satisfying certain requirements. None of the Applicants are within this category.

The final element of the submissions of Ms Glass has the following components:

Previous Afghan government communications had requested that the MOU be reconsidered and proposed the suspension of all repatriations; and

the first NV (noted in [46] above) defined vulnerable people as set out.

In the circumstances outlined in extenso in chapters I – VII above, the fundamental question which arises is: what can, and should, this Tribunal properly and usefully decide, or declare? We consider that, broadly, there are two basic competing considerations. On the one hand, there is the overriding objective, the ingredients whereof include in particular the substantial investment of judicial time and resources in the conduct of these proceedings and the exercise (a progressive one) of preparing this judgment; the considerable investment of time and resources by all the parties; the factor of public funding; the large number of litigants; and the evident inevitability of further attempted exercises of repatriating Afghan nationals from the United Kingdom to their country of origin, with resulting challenges. On the other side of the scales, there

At this juncture, we refer to the appendices to this judgment which encapsulate, at a glance, the evolution recounted above. We also highlight certain key facts. First, the decisions of the Secretary of State impugned by the Applicants in these proceedings were based on evidence which has, subsequently, evolved significantly. Second, further, updated decisions on the part of the Secretary of State are now inevitable. Third, these decisions will be the product of the new (ie post – 01 April 2015) evidence, the further representations which will be made on behalf of all of the Applicants and such additional evidence as may have materialised since the adjournment of the hearings in these proceedings on 12 May 2015 and/or may yet materialise. It is common case that the Secretary of State will be obliged to consider all of the new evidence and representations. This, we pause to observe, is a public law duty. In these circumstances, we must decide whether judicial adjudication of the Applicants’ challenges on the basis of all the evidence amassed is appropriate, in circumstances where the proper course is plainly for the Secretary of State to make further, updated decisions, with such consequences as may materialise.

Balancing the various interests identified above and bearing in mind that this is a “rolled up” hearing, we have concluded, not without hesitation, that these judicial review applications should be determined substantively. While this conclusion is marginal in nature, the factors which tip the balance favouring this course are the heavy investment of judicial and lawyers’ resources to date, the high number of litigants involved, both directly and indirectly and the potential for judicial adjudication of the main issues in these proceedings to influence future events and decisions, to limit the areas of dispute and to save costs, given the predictable scenario of the parties continuing to join issue in the context of fresh decision making by the Secretary of State.

Conscious of the judicial review character of these proceedings, we consider that we have a discretion whether to consider the totality of the evidence. Consistent with the approach adopted by the House of Lords in R v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839 (per Lord Hope at 860 – 861 especially), we have decided to exercise this discretion in favour of taking into consideration all of the evidence assembled. This will enhance achievement of the aims just identified. Furthermore, this course is preferable to the rather impracticable option urged by Ms Glass of adjudicating on all the

We are mindful that, in the paradigm judicial review challenge, the evidence considered by the court or tribunal in exercising its supervisory jurisdiction will be confined to the material considered by the decision maker. However, it is consistent with the character of the judicial review jurisdiction that this is not an absolute rule or principle, as the decision in Launder illustrates. Other illustrations include R v Secretary of State for the Home Department, ex parte Turgut [2001] 1 All ER 719, where the determining factor in the Court of Appeal’s preparedness to consider fresh evidence was the Article 3 ECHR dimension. It has been clearly stated that the reception of fresh evidence principles enunciated in Ladd v Marshall [1954] 1 WLR 1489 are not applicable in judicial review proceedings: see E v Secretary of State for the Home Department [2004] QB 1044, at [81], and Haile v Immigration Appeal Tribunal [2002] IMM AR 170, at [25]. We consider it far from coincidental that many of the cases in which this flexible approach to evidence has been adopted have a fundamental rights or asylum context.

We are also mindful of the oft repeated admonition that judicial review is an unsuitable vehicle for resolving disputed facts. It seems to us that the correct formulation of this principle must be that, as a general rule, the forum of judicial review proceedings is frequently less suitable than others for resolving disputed issues of fact. It is undeniable that, in this respect, the classic inter-partes model with its adversarial rules and traits, which include “live” evidence and cross examination, has clear advantages. However, once again, as decisions such as Anufrijeva v London Borough of Southwark [2004] 2 WLR 603 illustrate, this is not an inflexible principle. Thus, while, per Lord Lowry, oral evidence and disclosure “ are not part of the ordinary stock in trade of the prerogative jurisdiction ” ( R v Inland Revenue Commissioners, ex parte Coombs [1991] 2 AC 283, at 302), we consider that the fact sensitive nature and litigation sensitive context of the individual case must always be examined. Furthermore, the related principle that in judicial review the Respondent’s (or Defendant’s) evidence is to be taken as it stands, namely in preference to that of the Applicant (or Claimant) where they are in conflict with each other, does not nowadays apply with the same force of yesteryear. As was observed by Nolan LJ in R v Secretary of State for the Department of Environment, ex parte London Borough of Islington [1997] JR 121, at 128:

We have referred above to the litigation context . In the present case, relevant features of the litigation context include the reality that some of the material evidence takes the form of the reported oral statements of persons, Afghan Government Ministers in particular, who will probably not be available for cross examination (if such course were ordered) in any conceivable circumstances. It is also appropriate to take into account that tribunal judges have ample familiarity with the tasks of resolving contentious factual issues and making findings of fact. We are further aware that none of the parties to these proceedings, all of them represented by experienced Counsel, has suggested that in the forum of this litigation the Upper Tribunal is in any way ill equipped to make evaluative assessments of the evidence and, where necessary or appropriate, to find facts. Indeed, the final submissions of all parties positively espouse this course, albeit in somewhat contrasting terms.

The Tribunal shall proceed accordingly. In doing so, we would highlight that we have rehearsed all the evidence in extenso in chapter V above and we have, with the assistance of the parties, identified all of the key facts bearing on the individual Applicants in chapter VI. In performing this exercise we have identified certain key issues, to which we now turn.

This forms a lynchpin of the Applicants’ challenges. We have reviewed the evidence bearing on this discrete issue and refer to our digest of it in [24] and [54] above. As a starting point we accept that Minister Balkhi spoke the words attributed to him. We must view his statements in the full surrounding context and within the landscape formed by all the evidence. Minister Balkhi is the Afghani Minister for Refugees and Repatriation. We note, firstly, that when he was interviewed by Dr Schuster he was newly appointed. This chimes with later, more detailed, evidence from Afghan government members and representatives about the lack of a settled government position on the topic of the repatriation of Afghan nationals. We consider it likely that Minister Balkhi seized the opportunity to broadcast a hard line, in the context of the obvious reality that Afghanistan remains a struggling country with significant economic and other problems and a grossly over populated capital, Kabul. We take judicial notice of the fact that repatriation involves a drain on limited resources. Thus the discouragement of would be repatriating countries is a far from surprising strategy.

We further take into account that Minister Balkhi was expressing a personal

We note also the absence of any corroboration of Minister Balkhi’s statements. For example, they are not supported by UNCHR. His statements are further confounded by the contents of the NVs. We consider that, ultimately, the statements of Minister Balkhi were those of an isolated and unauthorised voice, at a particular point in time, ploughing a lonely furrow which the author has since abandoned. This analysis is reinforced by the most recent statement attributed to the Minister in a telephone conversation with a member of the firm of solicitors representing the Applicants: see [53](i) above. In this statement the Minister specifically highlighted three of the provinces of Afghanistan as very dangerous. This stands in marked contrast with his statement at the beginning of this discrete saga, when he claimed that only two of the thirty four Afghanistan provinces were safe. We consider the evolution in his personal stance clear.

This is a second key aspect of the Applicants’ challenges. At the outset, we highlight that it differs in character from the “Minister Balkhi” issue, since, while it requires the Tribunal to evaluate certain segments of evidence, it also entails the detached, clinical exercise of construing certain documents, namely the MOU and the related NVs. This is a pure issue of law and the evidence bearing thereon is, at this juncture, static and complete. We characterise this a pure issue of law because it is trite that the construction of any document is a question of law for the court or tribunal concerned: see In Re McFarland [2004] UKHL 17 at [24], per Lord Steyn. In this instance, the primary document to be construed is the MOU. We consider it appropriate to exclude from this purely objective

It is trite that the MOU and the related NVs are to be construed in the context to which they belong. These documents are the product of high level inter-governmental diplomatic negotiations and activity. They are mechanisms designed to facilitate the practical implementation of arrangements between States. Though somewhat analogous thereto, they are not to be equated with international treaties or conventions. They have an unmistakably precarious dimension, as the evidence in these proceedings confirms. This assessment is fortified by the appellation “Memorandum of Understanding”. We consider this to be a species of inter-state arrangements which is to be construed with a suitable degree of breadth and flexibility.

The Tribunal’s resolution of this issue is to some extent bound up with its determination of the “Minister Balkhi” issue. The first assessment which we make of the MOU is that its text has clearly been supplemented, or varied, by the practice of the two signatory States. The main variation of this species is that while the terms of the MOU do not embrace involuntary returning Afghan nationals, it has been consistently applied to this group. Thus, as it has evolved in practice, the MOU encompasses both voluntary and involuntary returning Afghan nationals.

The next issue to which we turn is that of vulnerable persons. The term employed in the text is “ vulnerable groups ”. This is not the subject of any attempted exhaustive definition. Rather, while there is some description, this is inclusive in nature. The groups who expressly fall within this inclusive definition are unaccompanied minors, women and children. The words “ other vulnerable groups ” are undefined and unparticularised.

We consider that the legal effect of the several NVs is to supplement and elucidate the terms of the MOU. The NVs merge with the MOU. By the first NV a more expansive definition of “ vulnerable groups ” is introduced, under the banner of “ vulnerable people ”:

The open textured language and inexhaustive terms of the definition of vulnerable people contained in the MOU and supplementing NVs has the potential to give rise to debate in individual cases. Thus, for example, a physically or mentally handicapped adult would be expected to contend that they are exempted from repatriation on account of their specific vulnerability. Furthermore, while the language includes the word “families”, it is not difficult to conceive of an individual family which may not be considered vulnerable –for example, a unit consisting of two healthy parents aged in the bracket 45–60 and two healthy, able bodied children aged in the range 20–35. These reflections serve to highlight that every case will be unavoidably and intensively fact sensitive. Furthermore, by its very nature, the MOU is capable of evolving with the passage of time, as events during the past three months have demonstrated. That it is not set in stone is further reinforced by the clear evidence of a bilateral commitment of the two Governments concerned to reconsider its terms. This, in our estimation, is properly analysed as a continuation of an exercise already begun.

Having construed the MOU we turn to examine its legal status and effect. We have begun this exercise in [81]-[82] above. We consider that the MOU is to be viewed, fundamentally, as a species of agreement between two sovereign States. Those to whom it applies are not parties to this agreement. Accordingly, they cannot rely on the MOU as a source of rights which they can assert or obligations owed to them. Furthermore, it is trite that the MOU does not limit or dilute the international obligations of the United Kingdom Government deriving from the Refugee Convention, the Qualification Directive and the ECHR. The issue of risk upon return is neither addressed nor governed by the MOU. Rather, this issue, which is one of mixed fact and law, is to be evaluated and determined on a case by case basis by reference to the aforementioned international instruments and all available material evidence.

We consider that the MOU is, at heart, a bilaterally agreed mechanism regulating the practical implementation of the repatriation of Afghan nationals from the United Kingdom to their country of origin. It is a cocktail of highbrow principles and the purely prosaic. It enshrines a series of norms and principles to be applied by the two Governments to the repatriation exercise. It is not overly prescriptive. It is a relatively high level instrument, with its espousal of governing norms and principles and its lack of dense detail. It is clearly designed to provide the two governments with a workable, viable and flexible tool to achieve the aims of efficacious repatriation and, in the words of one of the recitals, the “ dignified, safe and orderly repatriation to and successful integration in Afghanistan ”, which is clearly one of its overarching purposes.

Given our assessment of the legal character of the MOU, the question arises to what extent, if any, individuals can seek to invoke its terms. We consider that the MOU is not simply a bilateral inter-governmental agreement. Rather, it is also an expression of the policy of the United Kingdom Government relating to the

As regards other possible legal effects, mindful of the confined nature of the challenge in these proceedings, we confine ourselves to some general observations. It is conceivable that the MOU could feature in a challenge based on the common law principle of equality of treatment, sometimes framed as the “ like cases must be treated alike ” maxim: see, for example, R (G) v Barnett LBC [2004] 2 AC 208, at [46]. It is also conceivable that the asserted inconsistent application, or indeed its non-application, in a given case of the MOU could found an irrationality challenge.

In addition, there may be scope for asserting a substantive legitimate expectation based on the terms of the MOU, in particular its provisions (as supplemented) relating to vulnerable persons and groups. Challenges of this kind have featured in the analogous context of immigration policies. See, for example, R (Saadi) v Secretary of State for the Home Department [2002] 1 WLR 356, at [7] especially (per Lord Phillips MR), R v Secretary of Statement for the Home Department, ex parte Popatia [2001] Imm AR 46, R v Secretary of State for the Home Department, ex parte Ahmed [1999] Imm AR 22 (at 36–37 especially), Minister for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273 and Thomas v Baptiste [2000] 2 AC 1. In all of these cases the principle that the assumption of an international treaty obligation by the Executive is capable of giving rise to a legitimate expectation is acknowledged. So far as we are aware, the issue of whether this principle extends to inter-Governmental agreements such as the MOU has not been authoritively decided. Subject to more extensive argument in an appropriate case, there is no evident reason why it should not.

For the avoidance of any doubt, we make clear that the possible uses and significance of the MOU in judicial review proceedings canvassed above will have to await future judicial decision in appropriate cases. None of them arises for decision in the present proceedings.

We find no evidential basis for concluding that the MOU was not taken into account by the Secretary of State in making the decisions impugned in the present cases. Insofar as the Applicants make the contrary case, the burden of demonstrating this, a pure question of primary fact or inference, has not been discharged. Indeed, any such assertion is positively confounded by both the content and date of the first NV of 10 March 2015: see [46] supra . In Counsel’s written submissions the Applicants advance the following case:

We have rehearsed above, in [67], the basic principles bearing on this aspect of the Applicant’s challenge. This being a “rolled up” hearing, we remind ourselves that the threshold to be surpassed is not the modest one of arguability. The statements attributed to Minister Balkhi and the case made based on the MOU are two of the cornerstones of the Applicants’ challenge under paragraph 353 of the Rules. Having regard to the evaluation and conclusions set forth above, two of the main pillars of the Applicant’s challenge are without substance. The other elements of this challenge are rehearsed in Chapter V above: the expert evidence, the UNCHR 2013 Guidelines, the various reports of international agencies, the Home Office 2015 Country Information and Guidance publications and the sundry witness statements generated on both sides.

Self evidently, the Secretary of State’s decisions in these cases fall to be reviewed by the Tribunal by reference to the evidence extant on 31 March and 01 April 2015, when the latest decisions were made, applying the principles rehearsed above and, in particular, the threshold of irrationality. In substance, we prefer the arguments of Ms Glass (summarised in [69] – [70]) on this issue. Within the limitations of a judicial review challenge and the hearing which has taken place we find no warrant for departing from the current country guidance promulgated in AK . In particular, we find that the evidence falls short of satisfying the stringent Article 15(c) test.

The Tribunal is equipped to make a further, ex post facto , assessment of the impugned decisions having regard to the post-decision evidence which it has received. This includes evidence of the successful repatriation of Afghan nationals from the United Kingdom and other countries to a series of provinces. In this context we refer particularly to the evidence digested in [50] above, which we accept. This evidence reinforces our conclusion that the impugned decisions of the Secretary of State are unimpeachable on the grounds advanced by the Applicants.

We are alert to the factor of new evidence in the case of the Applicant SA and our ruling refusing the application to amend his grounds, based thereon: see [14]-[16] above. Thus we consider it inappropriate to adjudicate on the discrete “durable solutions” aspect of his challenge and his reliance upon Article 8 ECHR. Our general findings and conclusions above should be considered in this light in his particular case. We have also considered it inappropriate to consider the challenge of those Applicants who base their case in part on paragraph 276

Mindful of the modest threshold of arguability, particularly in the context of challenges to decisions made under paragraph 353 of the Immigration Rules, we conclude that permission to apply for judicial review should be granted to these five lead Applicants and we dismiss their applications substantively. As regards the other Applicants, we dismiss their permission applications. Having considered the parties’ further oral and written submissions, we determine the ancillary matters in the following way.

All of the Applicants were the beneficiaries of interim relief in the form of an order prohibiting the Secretary of State from taking steps designed to remove any of them from the jurisdiction pending further order. When judgment was handed down in draft on 17 June 2015 this order was extended to 26 June 2015. On 25 June all of the Applicants made an application seeking a further extension of the order. By a letter of the same date it was represented, in terms, on behalf of the Secretary of State that removal directions were not imminent in respect of any of the Applicants, in circumstances where the final approved version of this judgment remained outstanding. [In passing, this circumstance materialised for the purely prosaic reason that both members of the panel were on leave during the two weeks following upon the hand down in draft.] It was also submitted on behalf of the Secretary of State that the grant of further interim relief would be inappropriate given that the judicial review claims had been dismissed. Given these considerations, the Order of a panel comprising Dove J and Upper Tribunal Judge Blum was to refuse the interim relief applications. This disposed of the interim relief issue.

The Order made orally on 17 June 2015 incorporated the following elements: the draft judgment handed down remained under the editorial control of the Tribunal, with the approved final judgment to follow in due course; the substantive applications for judicial review of the five lead Applicants were dismissed and the permission applications of all other Applicants were dismissed, with liberty to apply (included as a precautionary measure of fairness); the interim injunctive relief was extended to midnight on 26 June 2015; a timetable was set for any application for permission to appeal to the Court of Appeal and any response of the Secretary of State thereto; and, finally, the lead

Applicants were ordered to pay the Respondent’s costs, subject to any submissions in writing to be made in accordance with the timetable directed.

This elicited a response on behalf of the Applicants which included eleven

As appears from [1] – [22] above, the procedural history of these proceedings has a number of singular features. These are reflected in, inter alia , the three Schedules to which all of the Applicants have been allocated from time to time. From these schedules five lead cases were selected. This exercise was undertaken by the parties’ representatives and its outcome was presented to the Tribunal for approval, which was duly granted and recorded in an order. As noted in [5] above:

When handing down judgment in draft on 17 June 2015, the observation was made that it appeared to the Tribunal that unless it had lapsed into some very serious misconception the exercise of the facility of liberty to apply would seem inappropriate, having regard particularly to the matters highlighted in the preceding paragraph. Against this background the aforementioned eleven applications have materialised. The eleven LTA Applicants are, at this belated stage, effectively seeking to retreat from the elaborate case management arrangements which were made, consensually , for the purpose of processing all

The impropriety of this proposal is stark. We consider what is proposed by these eleven Applicants inappropriate for the following reasons. First, it is irreconcilable with the consensual case management arrangements made. Second, given the unambiguous concession that fresh representations will be made to the Secretary of State with a view to eliciting new decisions, we consider these applications a misuse of the process of the Upper Tribunal. Third, the judicial review applications initiated by these Applicants have been rendered moot given the indelible fact that there will be further representations to the Secretary of State and new decisions. Fourth, these applications are manifestly irreconcilable with the overriding objective. Fifth, an alternative remedy, namely the opportunity to procure a more favourable decision from the Secretary of State, remains unexhausted. Finally, what is proposed contravenes the strong general prohibition in contemporary litigation against rolling review by the court or tribunal. We are satisfied that the process of the Upper Tribunal should not be invoked for the purpose sought in these circumstances.

While we are mindful that there are some variations among the eleven LTA applications, each having its individual context, we consider it unnecessary to dilate on these in adjudicating upon the applications. For the reasons elaborated above we dismiss these applications.

As noted above, the Order made by the Tribunal upon handing down this judgment in draft was that the Applicants pay the Respondent’s costs, subject to any written submissions in accordance with the timetable directed. It is represented, unchallenged, on behalf of the Secretary of State that following the hearing on this date the liability of the Applicants to pay the Respondent’s costs was conceded and the Tribunal’s provisional Order was acknowledged. The associated correspondence was forwarded to the Tribunal. Notwithstanding, on the following two dates, 18 and 19 June 2015, the Applicants’ representatives sought to resile from this concession. They did so without seeking to vary the Tribunal’s timetable directions. In handing down judgment the Tribunal dealt with the issue of costs in a free standing way. This issue was not embraced by the liberty to apply provision: and the contrary is not suggested. In these circumstances the Tribunal is not seized of a valid costs application on behalf of

Further and in any event, we reject the additional costs submissions on behalf of the Applicants on their merits. The general rule that costs follow the event is a strong one. Nothing to warrant its displacement in this case has been demonstrated. All of the applications have been dismissed and this occurred in circumstances where all of the 32 Applicants subscribed consensually to the case management mechanism reflected in the Order identifying the five lead Applicants. We take into account that the inter-partes dimension of these proceedings has been largely confined to the five lead Applicants. We are also mindful of the usual practice regarding costs at the permission stage. On balance, we decide that there should be an order for costs against the five lead Applicants, coupled with a public funding element if appropriate. We make no orders as to costs, save to reflect public funding status, as regards the others.

We note the discrete issue pertaining to the costs in respect of the Court of Appeal “hearing” (evidently a telephonic exercise) on the evening of 21 April 2015, when costs were reserved. We were informed that this particular judicial intervention had the effect of cancelling the charter flight scheduled to depart to Afghanistan. The Tribunal is unclear of the circumstances in which this materialised. However, we are satisfied that further investigation of this discrete issue would be both unnecessary and manifestly disproportionate. The net effect of any successful appeal, or application, by any of the 32 Applicants to the Court of Appeal was to secure the grant of interim injunctive relief and the remittal of all issues, including the reserved costs, to the Upper Tribunal. We have been shown no order suggesting otherwise. None of the parties contests our jurisdiction to determine this discrete issue.

It would appear that the appeals, or applications, were brought ex parte . Furthermore, it is undisputed that the ingredients of this unusual context included the circumstance of no anterior order of the Upper Tribunal refusing interim relief and the pursuit of relief on behalf of certain persons whose identities were unknown to the lawyers. Ultimately, all 32 judicial review applications having been dismissed by this Tribunal, whether by refusal of permission or substantively, any suggestion that the Respondent should pay these discrete costs of the Applicants concerned is a bold one. We concur with the submission on behalf of the Secretary of State that the pragmatic, reasonable and proportionate course is to make no Order as to costs inter-partes regarding this discrete matter.

Accordingly, we order that the Upper Tribunal Orders that the five lead Applicants pay the Respondent’s costs of these proceedings, to be assessed in default of agreement and giving effect to the assessment provisions of section 26(1) of the Legal Aid Sentencing and Punishment of Offenders Act 2012.As regards the other Applicants we make no order as to costs inter-partes and we make the appropriate order as regards any of these Applicants who are publicly funded.

The application for permission to appeal suffers from the manifest flaw that it does not engage with the applicable test, which requires that either an important point of principle or practice or some other compelling reason warranting the grant of permission is raised. Having considered the grounds broadly, and in bonam partem, we conclude that this test is not satisfied. These are intensely fact sensitive cases belonging to a unique litigation context. Permission to appeal is refused accordingly.

We would add that the application for permission to appeal is also, as a minimum, a dubious invocation of the process of the Tribunal for the reasons highlighted and summarised in [104] above. We take this opportunity to restate what was articulated firmly and unequivocally when judgment was handed down in draft on 17 June 2015. Viewed panoramically, the proper forum for any further engagement between any of the Applicants and the Secretary of State is that of further representations to the Secretary of State and fresh decisions by the latter. Neither the Upper Tribunal nor, in our judgement, the Court of Appeal has any role in this process. We wish to state this emphatically.

As regards the proper practice in the matter of circulation of draft judgments, the Tribunal draws attention to the cautionary words of Lord Hoffman in Edwards & Ors R (on the application of) v Environment Agency & Ors [2008] UKHL 22 at [66]:

In this case the draft judgment was circulated to the parties’ representatives on 16 June 2015. This elicited a response from both parties. The response on behalf

It is also timely to draw attention to the impending publication of an Upper Tribunal Practice Note pertaining to the topic of draft judgments and associated matters. To date, as all practitioners are aware, the Upper Tribunal has given effect to the Administrative Court practice. A specially tailored Upper Tribunal Practice Note will come into operation in the very near future.

UNHCR, ‘UNCHR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’ of 06.08.2013 (UNHCR Guidelines 2013);

Home Office, “Country Information and Guidance – Afghanistan: persons supporting or perceived to support the government and/or international forces, February 2015” (SSHD’s Risks from Supporting the Government Report, 2015);

UNAMA: Afghanistan annual report: Protection of civilians in armed conflict, February 2015 (UNAMA report, 2015);

Institute for the Study of War (ISW) The Taliban resurgent: threats to Afghanistan’s security, by Lauren McNally and Paul Bucala of March 2015;

First Witness Statement of Robert Chatterton Dickson dated 18 March 2015;

Expert Report by Dr Liza Schuster dated 26 March 2015;

Expert Report by Professor Susan Clayton dated 23 March 2015;

RCD1: Information Note on UK returns and reintegration Programme to Afghanistan (undated);

RCD2:Tripartite MOU between the UK and Afghan government, and UNHCR dated 12 October 2002;

Note Verbale: Ministry of foreign Affairs (Western Europe Desk) dated 10 March 2015;

Witness Statement of Mark Rich dated 18 March 2015.

EASO Report dated January 2015

OGN policy guidance re-issued February 2015

Second witness statement of Robert Chatterton Dickson dated 17 April 2015;

Note Verbale of Afghanistan Embassy in London dated 13 April 2015;

Note Verbale of Afghan Ministry of Foreign Affairs dated 13 April 2015;

Note Verbale dated 8 April 2015;

Third witness statement of Robert Chatterton Dickson dated 6 May 2015

Robert Chatterton Dickson’s letter to the Tribunal dated 10 May 2015 enclosing Note Verbale of Afghan Ministry of Foreign Affairs dated 9 May 2015

Two page UNAMA update dated 12 April 2015

Original untranslated and Appellants’ translations of the April Notes Verbales served on 7 May 2015

Report of Mr Foxley dated 7 May 2015

Witness statement of Jamie Bell dated 7 May 2015

Witness statement of Nasir Ata dated 7 May 2015

Witness statement of Bahar Ata dated 7 May 2015

Red Cross and Asylum Welcome correspondence regarding the Applicant SA dated 10 April 2015; 23 April 2015, and 7 May 2015

Country report “Research on IDPs in urban settings-Afghanistan” dated May 2011